Court File and Parties

Court File No.: FC-15-1115

Date: 2015-12-24

Superior Court of Justice - Ontario

Re: Noor Hasan A. Abdulhadi, Applicant

And: Ali Ahmad, Respondent

Before: Madam Justice S. Corthorn

Counsel: Odette Rwigamba, Counsel, for the Applicant Thomas W. Curran, Counsel, for the Respondent

Heard: August 17, 2015

Endorsement

Overview

[1] It is not unusual in family and other litigation to be faced with affidavit evidence, the end result of which is a statement by the presiding judge that “The parties differ significantly” in their evidence with respect to the critical issues to be resolved. This matter is a classic example of parties who differ not only significantly, but fundamentally, on virtually every subject.

[2] Ms. Abdulhadi and Mr. Ahmad (“the Parties”), who are embattled with respect to their very young son, do not even agree as to how they met or the circumstances which led to their marriage. Beyond that, the Parties have divergent views with respect to their relationship, their respective contributions to the care of their son since his birth in August 2014, the cause of the breakdown of their relationship, and each other’s conduct subsequent to the date of separation.

[3] The Parties have each filed several affidavits in their respective names and rely on the affidavit evidence of one or more of their family members. What is striking about all of the affidavits is the minimal content related to the child and his well-being. The affidavits are replete with allegations of misconduct on the part of one or more of the Parties and, to some extent, the family members of the Parties. With few exceptions, the alleged misconduct in no way relates to the daily routine or well-being of the child.

[4] The Parties were before the Court on four occasions (three motion return dates and a case conference) before proceeding before me with the respondent’s motion for interim custody and the applicant’s cross-motion for interim custody, child support, and spousal support. Two interim, interim orders have been made with respect to custody and access.

The Issues

[5] The issues to be determined on this motion are:

1. Custody;
2. Child support; and
3. Spousal support.

Decision

[6] In all the circumstances of this case, I make the following temporary order, without prejudice to either party to bring a further motion with respect to interim custody, access, child support, and spousal support:

1. The child’s primary place of residence is with Noor Hasan A. Abdulhadi.
2. Ali Ahmad is to have parenting time with the child Mehdi Ahmad (born August 1, 2014): a) Every Tuesday from 4:30 to 7:30 p.m.; b) Every Wednesday from 4:30 to 7:30 or, if the father is available to personally care for the child, from 9:00 a.m. to 7:30 p.m.; c) Every Thursday from 4:30 to 7:30 p.m.; and d) On weekends as follows: i) Commencing on the weekend of January 2 and 3, 2016 and on alternating weekends thereafter - on Saturday from 9:00 a.m. to Sunday at 4:00 p.m.; and ii) Commencing on the weekend of January 9 and 10, 2016 and on alternating weekends thereafter - on Saturday from 9:00 a.m. to Saturday at 4:00 p.m.
3. Ali Ahmad shall pay child support, based on his 2014 income of $57,820.00 and in accordance with the Child Support Guidelines, in the amount of $525.00 per month.
4. The payment of child support is retroactive to May 7, 2015 with the first month’s payment pro-rated to take into consideration the payment period of May 8 to 31, 2015.
5. Ali Ahmad shall pay spousal support in the amount of $1,100 per month.
6. The payment of spousal support is retroactive to June 23, 2015 with the first month’s payment pro-rated to take into consideration the payment period of June 23 to 30, 2015.

Background

[7] The mother was born in Iraq in December 1983. While still living in Iraq, she did not complete high school. The father was born in Iraq in 1983. His family came to Canada in 1995. The father is a Canadian citizen. Living in Ottawa are the father’s parents and two brothers. Also living in Ottawa are the mother’s sister and brother-in-law, and their four children.

[8] The father works as a Resource Management Support Clerk at the Headquarters of the Department of National Defence in the City of Ottawa. According to his Form 13.1 (financial statement (property and support claims)) his gross income in 2014 was $57,820. The mother has, since arriving in Canada, been unemployed. She is presently in receipt of social assistance.

[9] In 2011, the father and mother corresponded via the Internet. They met for the first time in late 2011, when the father travelled to Iraq. Several weeks after their first meeting, and while they were both still in Iraq, the Parties were married. The father returned to Canada, and began the process to have the mother come to Canada as a landed immigrant. The mother arrived in Canada in the latter half of 2013 as a landed immigrant. The child, Mehdi Ahmad, was born on August 1, 2014.

[10] From February 17 to March 2, 2015 the mother and child stayed at the home of the mother’s sister and brother-in-law. One of the mother’s nephews underwent surgery and the mother was assisting the sister and her family. The mother returned with the child to the matrimonial home in early March. From early March to the date on which she left the matrimonial home, the mother stayed with the child in his room. The Parties communicated in writing only – via text message or hand-written notes.

[11] On May 7, 2015 the mother left the matrimonial home with the child. She has, since leaving the matrimonial home, found accommodation in a shelter and obtained assistance from Women’s Immigration Services Ottawa.

[12] On May 13, 2015 the matrimonial home was sold by the father. The sale occurred without the prior knowledge or consent of the mother. In the transfer document, the father says, “I am not a spouse.” Since the sale of the matrimonial home the father has been living with his parents and two brothers in Barrhaven.

Procedural History

[13] The procedural history to date of this matter is as follows:

• Apr. 20, 2015 - The notice of application is issued. The mother swears a Form 35.1 (affidavit in support of claim for custody or access) and a Form 13.1 (financial statement (property and support claims)).
• Jun. 2, 2015 - The mother’s notice of application and supporting materials are served on the father.
• Jun. 3, 2015 - The father files motion record for a motion to be heard on short notice or, if necessary, without notice seeking an order: a) returning the child to “the child’s home”; b) for sole custody of the child; and c) prohibiting the removal of the child from Canada.
• Jun. 4, 2015 - The father’s motion is heard as a Procedural Motion by Master Roger (as he then was). Master Roger determines that the matter is urgent, sets a return date of June 23, 2015 for the father’s motion to be heard on an urgent basis.
• Jun. 23, 2015 - The return of the motion is before Justice Robertson. The endorsement of Justice Robertson: a) reflects the very strained relationship between the Parties and between the mother and the family members of the father; and b) highlights the very significant issue of status quo for the purpose of an interim custody order. Justice Robertson endorses the matter as follows:

This separation started badly. The child needs a relationship with both parents …

The house has been sold.

The conflict is high.

There is serious tension between the mother and the mother-in-law and I hold the father responsible to manage the people he chooses to reside with who will have contact with the child.

There is no status quo.

There is a need to make a parenting arrangement that will suit the child and finally, it is impossible given the choices.

1. Both parents to provide a comprehensive child-focussed parenting plan within 30 days.

2. Father to have time with the child Tuesdays 4:30 - 7:30

3. this Thursday 4:30 – 7:30

Saturday 9:00 a.m. – 7:30 p.m.

Sunday 9:00 a.m. – 7:30 p.m.

Wed. 4:30 – 7:30 p.m. or if he is available, 9 – 7:30; thereafter commencing July 4, Saturday 9 a.m. – Sunday at 4 p.m.

Temporary motion may be brought.

This is an interim interim order.

Father has undertaken to pay guideline child support.

Opinion was given re his obligation to pay spousal support + any spousal support order is to be retroactive to at least today.

The family finances are limited but the mother is somewhat strapped without funds.

• Jul. 17, 2015 - Justice Doyle presides over a case conference. She makes an order with respect to disclosure and for the father’s motion with respect to interim custody to be heard on August 5, 2015.
• Aug. 5, 2015 - The father’s motion is returned before Justice Blishen. Counsel for the mother is in Africa, attending the funeral of her father. An agent for counsel for the mother is present. Counsel for the mother had arranged to participate by telephone from Africa if necessary. The matter is adjourned to allow for “careful, well prepared representation by counsel for both parties”. Justice Blishen also orders as follows:

In the interim the temporary order of Justice Robertson of June 23, 2015 is to continue as follows: The R. father is to have parenting time with the year old child Mehdi (born Aug. 1/14):

• every Tues. from 4:30 – 7:30 p.m.

• every Wed. from 4:30 – 7:30 or, if the father is available, from 9 a.m. – 7:30 p.m.

• every Thurs. from 4:30 – 7:30 p.m. and

• every Sat. from 9 a.m. – Sun. at 4 p.m.

The [father] should be paying [child support] as per the CSG and, as noted by Justice Robertson, [spousal support] if ordered should be retroactive until at least June 23, 2015.

[14] The endorsements of each of Justices Robertson and Blishen have not been taken out as orders. As of the return of the motion before me the total hours per week of parenting time of the father ranges from 43 to 49.5 hours (with the latter representing full-day on Wednesday).

The Positions of the Parties

a) The Father

[15] The evidence of the father and of his parents, both of whom have filed affidavits in this matter, is to the effect that the mother is uneducated and unsophisticated. The mother, perhaps in conjunction with her family, saw marriage to the father as a way out of Iraq and to a better life. The mother is repeatedly described as lacking an appreciation for financial matters and the constraints within which the couple and their child were required to live given the father’s income. She is described as a poor home-maker and less-than-adequate housekeeper.

[16] The father’s position is that the mother has been unable to adjust to life in Canada and, as a result, she became emotionally unstable. That instability led to friction in the parties’ home, friction between the paternal grandparents and the mother, and the mother’s physical abuse of the child on a number of occasions.

b) The Mother

[17] The mother alleges that she has been abused emotionally, psychologically, and financially by the father. She does not allege any physical abuse by him. The mother describes her husband as totally controlling with respect to the family finances – to the point that she did not, prior to commencing this application, know the amount of the father’s annual income. She alleges that the father denied her any ‘pocket money’ until she was six months pregnant with their son; stopped providing pocket money ($100 per month) once their child was born; and forced her to rely on the money from the child tax benefit once their son was born.

[18] The mother is convinced that the father is overly dependent upon his mother for advice and under his mother’s control to a large extent when it comes to dealing with her. Essentially the mother believes that she is up against the father and his family.

[19] With respect to the child, the mother says that she has at all times been the primary caregiver for the child – bathing and feeding him; doing the laundry; and doing everything else required for the care of the child. Her evidence is that the only ‘care’ the father provided for their child was to take responsibility for purchasing groceries and that he did so specifically because of his desire to control the family spending. In summary, the mother says, “The [father] knows nothing about the needs of our child and he has always relied on me to tell him what I needed for the child.”

[20] The mother’s evidence is that even when the father was on paternity leave (August 2014 to April 2015) he was not involved in the child’s life. It is her evidence that the father was frequently out of the home for the majority of the daytime hours including to assist his brother in the brother’s construction business. The father did nothing to help her with the care of their son or with the housework. It is also her evidence that when she was in the matrimonial home with the father and the child the father would, when the child was crying, use earphones in an effort to block out the sound of the crying.

ISSUE NO. 1: Custody

Analysis

a) Status Quo

[21] In her endorsement dated June 23, 2015, Justice Robertson said, “There is no status quo.” Her statement no doubt reflects the following changes in the circumstances of the child from August 2014 when he was born until the summer of 2015:

• Aug. 2014 to Feb. 17, 2015 - The child resides with the mother and father in the matrimonial home (approximately six months).
• Feb. 17 to Mar. 2, 2015 - The mother and child stay for approximately two weeks with the mother’s sister and her family.
• Mar. 2 to May 7, 2015 - For approximately two months, the mother and child live with the father in the matrimonial home. At the mother’s choosing she remains in the child’s room. The mother communicates with the father in writing only - even with respect to the child’s needs. There is conflicting evidence as to the extent to which the father had time with the child during this period.
• May 7, 2015 - The mother leaves the matrimonial home with the child and finds accommodation for herself and the child in a shelter.
• May 13, 2015 - The matrimonial home is sold.
• Unknown - The father begins to live with his two brothers and his parents in the latter’s four-bedroom home in Barrhaven, Ontario.

[22] I agree with Justice Robertson – in this case there is no status quo to be considered. The father refers in his motion materials to a return of the child to “the child’s home”. Yet even as of early June when the parties were first before the Court, what the father considered to be “the child’s home” (i.e. the matrimonial home) had been sold. The father was no longer living in the matrimonial home, and having moved in with his parents and siblings.

[23] Going back in time – prior to March 2, 2015 – although there is contradictory evidence with respect to the contribution of the father to the child’s care, the undisputed evidence is that the mother has been the child’s primary caregiver throughout.

[24] In the two months (March 2 to May 7, 2015) prior to the mother leaving the matrimonial home with the child, the status quo was that the mother remained with the child in his room the majority of the time. The father had, by that time, returned to his full-time position with the Department of National Defence. If that is the status quo to be considered, then it has not changed in as much as the mother was and remains the primary caregiver for the child during daytime hours with the child having some opportunity to engage with the father during evening hours and on weekends.

[25] The father’s evidence as to his involvement in his son’s life prior to May 7, 2015 is limited to the following:

• June 8, 2015 (answer) - “The respondent states that at all times he was fully involved in raising the child.”
• June 18, 2015 (affidavit) - “I was, contrary to [the mother’s] assertions, involved in raising Mehdi (except when she took to locking him up in his room and refusing me contact with him) … What I am most concerned about is raising our son in a good neighbourhood, with good schooling, surrounded by loving family and competent caregivers.”
• July 21, 2015 (affidavit) - “Despite the claims to the contrary by the applicant, I was an involved parent. I took a nine-month paternity leave so that I could be at home with Mehdi during that time. My parents were also deeply involved with Mehdi throughout, until the applicant took him away.”
• August 4, 2015 (affidavit) - “I took time off to be with my child and to help her with the day-to-day work that needs to be done. It is not true that I did not help. Throughout her pregnancy I put in the effort to run a household. I vacuumed and cleaned, changed diapers, and I fed (as I rightfully should) my son many times. Anything that needed to be done I would try to do but that became apparently harder after I returned to work.”
• “I take the child by myself all the time in the stroller for walks to the park and to my parents’ house. The needs of my child have and always will be number one in my life … I have never in the past or will ever put anything above my child.”

[26] In the affidavits filed by each of the father’s parents there is no evidence whatsoever as to their respective observations of the father’s historical parenting of the child or as to his parenting skills.

[27] In summary, in all of the evidence filed on behalf of the father, the only elements of parenting which he describes are to the effect that he has fed the child, changed diapers, taken the child for outings in a stroller, and visited with the child at his parents. There is otherwise no evidence as to his specific involvement with his son, his understanding of the needs of the child, and his parenting abilities or skills.

[28] I note that the father admits that after he returned to his full-time employment it was “harder” for him to be involved with his son.

[29] The mother’s affidavit evidence is, like that of the father’s, deficient in terms of specific evidence as to the child’s routine, his needs, and the manner in which the mother cares for the child on a day-to-day basis. In her August 12, 2015 affidavit the mother states that she recognizes the need for Mehdi, who is still very young, to have “consistenc[y] in his care and routine in his life.” In the same affidavit, the mother confirms her continuing availability to provide care to the child.

[30] It is well-established that on a motion for temporary custody serious consideration must be given to the status quo. Typically, emphasis will be placed on the status quo as of the date of separation because that set of circumstances is of long-standing. Emphasis on the long-standing set of circumstances serves to discourage parties from self-help measures such as removal of the child from the historical status quo in an effort to gain strategic advantage for the purpose of the return of an interim motion for custody. I deal below with the mother’s unilateral decision to leave the matrimonial home with the child in May 2015.

[31] I find that the one consistent element of this child’s care is that his mother has, since his birth, been his primary caregiver regardless of where the child resided (the matrimonial home; temporarily at the home of the child’s aunt; and in a shelter). That the mother has, exclusively, been the primary caregiver since the date of the child’s birth is a significant factor in determining the outcome of the matters before me.

[32] In addition, there is no evidence upon which to base a finding that the mother is incapable of remaining as the primary caregiver for her son.

b) Parenting Plans

i) The Mother

[33] The mother’s parenting plan is found as an attachment (exhibit) to an affidavit sworn by the mother in late July 2015. The affidavit was filed with the Court on July 30, 2015 which is outside the 30-day deadline for same set by Justice Robertson in her June 23, 2015 endorsement. Counsel for the father argues that the plan was filed ‘out of time’. As noted above, counsel for the mother was out of the country in July 2015 as a result of the death of her father. In the circumstances, I exercise my discretion to extend, retrospectively, the 30-day deadline set by Justice Robertson for the filing of the mother’s parenting plan.

[34] The mother proposes that the child shall be primarily resident with her. The extent of the regular access (i.e. other than holidays etc.) which she proposes for the father is limited to: a) every Wednesday from 5:00 to 7:00 p.m.; and b) every Friday from 5:00 p.m. to Saturday at 5:00 p.m. The extent of the access which the mother proposes (a total of 14 hours per week) falls short of the access ordered by Justices Robertson (in June) and Blishen (in early August).

[35] In the related Form 33B.1 (answer and plan of care), the mother identifies that her intention is, once the child is one year old, to attend school to further her education in English as a Second Language. While she is at school, the child will be in the daycare program available to her at the school she plans to attend. As to a place to live, the applicant was, as of late July when the document was prepared, continuing to live in a supported environment (shelter). She says that she is on the priority list for an apartment. She receives support from her sister and Women’s Immigration Services Ottawa.

[36] In her parenting plan, the mother raises concerns with respect to the involvement of the paternal grandparents in the child’s life and refers to the endorsement of Justice Robertson in which she emphasized to the father the requirement to “manage” the people in his life to whom the child will be exposed.

ii) The Father

[37] The father’s Form 33B.1 answer and plan of care is dated July 13, 2015 and is attached as an exhibit to the affidavit of Ms. Bolton sworn on July 22, 2015. Ms. Bolton is the assistant to counsel for the father. This affidavit from Ms. Bolton was filed with the Court on July 23, 2015. From an evidentiary perspective, the father’s plan of care is hearsay as it is an unsworn document attached to the affidavit from Ms. Bolton. I am, for the purpose of this motion, prepared to consider the plan, attached as an exhibit to Ms. Bolton’s affidavit, as ‘some’ evidence of the father’s intentions with respect to the child.

[38] The father proposes that the child reside with him at his parents’ home and that the child’s time be split between the father and mother as follows: a) with the father from 4:30 p.m. on Thursday to Monday morning (87.5 hours per week, assuming an 8:00 a.m. return to the mother on Monday morning); and b) with the mother from Monday morning to Thursday at 4:30 p.m. (80.5 hours per week, assuming an 8:00 a.m. return to the mother on Monday morning). The father acknowledges that he will be out of the home during daytime hours on the Friday. During that time the child will be cared for by one or both of the paternal grandparents. The amount of time that the father proposes the child spend with him is approximately double the amount of time set out in the August order of Justice Blishen.

[39] In his plan, the father addresses the strained relationship between his parents (his mother in particular) and the mother. He concludes his plan by stating, “I believe that a court order placing Mehdi in our home, with extensive access to the [mother] would go a long way towards mending the fences and create a more wholesome and peaceful living space for Mehdi.”

[40] As was noted by the Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620, custody decisions are not to be based on a ‘hope’ that people and parental relationships will change in the future. The father’s belief or, perhaps more appropriately, hope that the relationship between the mother and the paternal grandmother will improve is not considered by me as a factor in determining the outcome of the motion for an interim custody order.

c) The Allegation of Abuse at the Hand of the Mother

[41] The father’s affidavit in this matter was in support of a request for his motion to be heard on an urgent basis. In that affidavit (sworn June 3, 2015), the father describes the mother’s disposition and alleged inability to adjust to parenthood. Specifically he says:

14. She became moody and quarrelsome. We fought frequently, usually over trivial things. When I arrived home from work, she would take Mehdi up to his room, and go in with him, locking the door, where she would stay for hours at a time. She was constantly upset and angry, unfortunately taking it out on Mehdi – I have both videos of her striking him, and photos of bruises resulting from her hitting him. I have attached hereto as Exhibit A two pictures taken showing bruising caused by the respondent. The second picture indicates bruising around the eye which resulted from his being struck with the applicant’s ring.

15. The applicant was equally unable to adjust to parenthood. She stopped breastfeeding Mehdi at four months, stating that doing so was preventing her from losing weight she gained during her pregnancy and interfered with her appearance. She had little patience for Mehdi, often hitting or otherwise physically abusing the child. The child had a number of bruises on his head, including his eye, after being struck by the applicant. The respondent considered contacting police and the CAS about the abuse, but did not do so out of fear that the child would be removed from the home. However, he did take a video during which one of the assaults on the child was recorded, and has pictures of the bruises suffered by the child.

[42] The only video produced in the matter to date is attached as an exhibit to an affidavit sworn by Ms. Bolton on August 4, 2015 (“the Bolton affidavit”). Attached to the affidavit is what Ms. Bolton identifies as a video taken by the father “in or about March 2015”.

[43] The affidavit of Ms. Bolton is hearsay because it is based on information provided by another. The source of the information is Mr. Curran, counsel for the father. Even if Mr. Curran had sworn the affidavit, the evidence that the video was taken by the father is hearsay. In the circumstances, the evidence becomes ‘hearsay upon hearsay’. As such, the Bolton affidavit is not admitted for the purpose of this motion. It is entirely inappropriate to rely upon evidence of that quality in support of allegations by one parent that the other parent is physically abusing a child.

[44] I have, in any event, reviewed the video several times. It is approximately 1.5 minutes in length. It shows the mother feeding the child. Throughout, the mother is attempting to keep the child’s right arm still – holding it down – in an effort to prevent the child’s arm from getting in the mother’s way as she brings the spoon of food towards the child’s mouth. At one point, the child’s arm becomes free and the mother does what may be described as a “tap” to the child’s right arm in an attempt to stop the child from interfering with the feeding process. Even if I were to find the video evidence admissible, it does not support a finding that the mother has been physically abusive towards the child.

[45] The father has also filed, as exhibits to one of his affidavits, photographs of the child. In one of the photographs the child has some redness in the centre of his forehead. In the other photograph there appears to be bruising in the area of the child’s left eye. The father alleges that the child’s condition as shown in the photographs is the result of physical abuse by the mother.

[46] The mother absolutely denies physically harming or abusing the child in any way: “I have never lost my temper, hit, yell, beat or do[ne] anything that could harm my son in any way.”

[47] In weighing the credibility of the parties with respect to the allegations of physical abuse, I accept the mother’s evidence over that of the father. I find that she has not been physically abusive towards the child. The attempt by the father to rely on the above-described video as evidence of physical abuse by the mother undermines his credibility both specifically with respect to the allegations of abuse and more generally.

d) Unilateral Actions of the Parents

[48] The father is critical of the mother for her unilateral decision, without notice to the father, to leave the matrimonial home on May 7, 2015 with the child. Counsel for the father argues that the mother’s departure from the matrimonial home on that date was part of a specific plan on her part to gain tactical advantage in the context of the custody battle to ensue. In that regard, reference is made to the April 20, 2015 date of the initiating documents in this matter – the notice of application, mother’s affidavit, and mother’s financial statement. The documents are dated approximately three weeks prior to the mother’s departure from the matrimonial home. The suggestion is that the mother’s plan was ‘in the works’ prior to the date of departure.

[49] The suggestion that the mother orchestrated a plan to gain tactical advantage runs contrary to the father’s position that the mother lacks the education and skill to manage life for herself and the child in Canada. The father relies on the latter point in support of his position that the child reside with him at his parents’ home. The suggestion that the mother concocted a plan runs contrary to the balance of the father’s evidence with respect to the mother’s abilities.

[50] I find that the mother’s conduct was not so as to gain a strategic or tactical advantage in litigation which was clearly to ensue. Rather, she chose to extricate herself from a situation which had become intolerable for her. The mother’s life was under the total control of the father. The mother’s choice to take the child with her requires separate consideration.

[51] For obvious reasons, the father relies heavily on the criticism by the Courts of litigants who engage in self-help tactics such as the unilateral removal of a child from the matrimonial home. However, the criticism of such tactics is more nuanced than as argued on behalf of the father.

[52] The father relies on the following passage from the decision of Pazaratz J. in Rifai v. Green, 2014 ONSC 1377, at para. 22:

A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can’t be entrusted with custodial authority they would likely abuse. Izyuk v. Bilousov (supra); Clement v. Clement, 2010 ONSC 1113.

[53] The ‘nuance’ which the arguments on behalf of the father overlook is that the criticism of unilateral conduct is strongest when a finding is made that the unilateral conduct by one parent was in the pursuit of the parent’s best interests without or with minimal consideration for the best interests of the child. See for example, Hernandez v. Hernandez, 2009 CanLII 84841 (Ont. S.C.).

[54] In the matter before me, there is no evidence to support a finding that the child’s best interests would have been better served if, when she left the matrimonial home, the mother had left the child behind. As noted above, the mother was the primary caregiver of the child from his date of birth to May 7, 2015. As of May 2015, the father had returned to full-time work and was not available during daytime hours to provide care for the child. It would not have been in the child’s best interests to be cared for in a daycare setting or even by the paternal grandparents when the mother remained available, even after leaving the matrimonial home, to care for the child on a full-time basis.

[55] Both the mother’s and father’s evidence speaks to the financial constraints which the family was facing in May 2015 and continues to face. The father describes limited disposable income available to provide for his family. The mother says she received minimal financial support, including for the necessities for the child, from the father. For the mother and child to be living in a shelter pending the availability of a rent-to-income apartment setting may be less than ideal. However, from a financial perspective the mother and child are not necessarily financially compromised to any greater extent than they were when: a) living in the matrimonial home with the father; and b) totally under the father’s control financially.

[56] I find that in leaving the matrimonial home with the child, the mother: a) did not put her interests ahead of the best interests of the child; and b) was not a “manipulative, selfish or spiteful parent[ ]” of the kind described in the passage quoted above from Rifai v. Green.

[57] What would have happened if the mother had not left the matrimonial home with the child? The father’s unilateral conduct was to sell the matrimonial home without notice to and without the consent of the mother. The transfer of the property was registered six days after the mother left the home with the child. An inference can be drawn that the agreement of purchase and sale for the property was finalized in advance of the date of the mother’s departure from the matrimonial home.

[58] There is no evidence of any discussion on the father’s part as to what his plan was for the family once the matrimonial home was sold. What would the status quo have been for the family if the mother had decided to leave with the child on a later date in May (i.e. after the matrimonial home was sold)? In his materials, the father requests a return of the child to “the child’s home”. Yet by early May 2015 the father was in the process of selling “the child’s home”.

[59] Was the father planning to have the mother and the child move with him to his parents’ home? The father clearly recognizes the strain between his parents and the mother even as of the spring of 2015. Was he going to fuel that strain by having his wife and child move with him to his parents? What the impact on the child would be if he were subjected to the tensions between the mother and the paternal grandmother? Was the father planning to move on his own to his parents, leaving the mother to fend for herself and the child?

[60] There is no evidence as to the financial options available to the father when he made the unilateral decision to sell the matrimonial home. Was it possible to re-finance the debt to permit the family to continue to live in the home?

[61] The father has to date offered no explanation as to why, on the relevant real estate document, he identified himself as not being a spouse. He has offered no explanation as to how the proceeds of the sale of the matrimonial home have been applied. He has given no indication that he recognizes his financial obligations to the mother in terms of an equalization payment which takes into consideration the equity in the matrimonial home at the date of sale.

[62] I find that the father’s unilateral decision to sell the matrimonial home, without any discussion or planning with the mother, is such that he placed his interests (financial and otherwise) ahead of the best interests of his child. His conduct in that regard is a factor which I consider in determining the outcome of the matters before me.

Best Interests of the Child

[63] In determining the outcome of this motion with respect to interim custody and access consideration must be given to the best interests of the child. The relevant factors are enumerated in section 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12:

The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[64] Given that Mehdi is only slightly more than a year old and the lack of stability, in terms of residence in particular, in Mehdi’s life to date it is difficult to apply each of the factors listed above to the circumstances of this case. I am not, based on the evidence available, prepared to make an interim custody order at this time. However, I recognize the need to “provide a reasonably acceptable solution to a difficult problem until trial” (or until an interim custody order can be made). See: Sypher v. Sypher (1986), 1986 CanLII 6337 (ON CA), 2 R.F.L. (3d) 413 (Ont. C.A.), at p. 414.

[65] An order is required that addresses the time the child will spend with each parent, based on the governing consideration of the child’s best interests. On the basis of the evidence before me, which is directed to the care of the child, I find as follows:

• The father has, since early August when Justice Blishen’s order was made, had sufficient parenting time with the child such that it is reasonable to change the amount of time which each parent has with the child on the weekends. It is reasonable to allow the mother to have some weekend time with the child so that she may pursue activities with the child, including with members of the mother’s family, that are not otherwise available to them during the week.
• Revising the weekend time as between mother and father also takes into consideration the mother’s stated intention to pursue courses during the week to improve her facility with the English language.

[66] There are competing allegations in the affidavit materials of the father and mother as to the manner in which access was handled between the June 23, 2015 return date before Justice Robertson and the August 5, 2015 return date before Justice Blishen. It appears that the Parties took differing views of the endorsement of Justice Robertson which may have contributed to one or more of the father’s access evenings with the child being missed. The misunderstanding, if any, with respect to the effect of the June 23, 2015 endorsement was brought to an end by the endorsement of Justice Blishen on August 5, 2015.

[67] It is important that the Parties consider the best interests of their child – as reflected in this and the prior endorsements – and work together to ensure that the father’s parenting time with the child is facilitated. Any historical problems with respect to the father’s parenting time must be addressed by both Parties. They must find a way to work together to ensure that their child knows both of his parents – a goal to which they both say they aspire. The order made at this time is without prejudice to either party pursuing an order for interim custody at a later date.

[68] I anticipate that on the return of such a motion, if brought, each party’s adherence to the parenting time/schedule ordered below will be a factor considered by the judge deciding the interim custody motion. The consideration given by each parent to encouraging and assisting the development of the child’s relationship with the other parent is a significant factor in the determination of custody disputes.

ISSUE NO. 2: Child Support

[69] The father’s 2014 gross income was $57,820 based on the notice of assessment included in the financial disclosure from the father to date.

[70] When the Parties appeared before Justice Robertson on June 23, 2015, the father undertook to pay child support. In early August, Justice Blishen endorsed, “The [father] should be paying [child support] as per the [Child Support Guidelines]”, as noted by Justice Robertson.

[71] On the return of the motion before me there was no evidence that the father had made any child support payments. The father’s failure to pay child support – of his own volition, on the basis of the undertaking given by him on June 23, and pursuant to the endorsement of Justice Blishen in early August – is indicative of a disregard on the father’s part of the best interests of his child.

[72] In her affidavit sworn on July 29, 2015, the mother says, “The Respondent works and earns income of over $50,000 per year, and I am on welfare and he has refused to pay any child and spousal support. I have need for support …” Attached as exhibit ‘C’ to the affidavit is a Divorcemate child support calculation identifying $525.00 as the monthly amount payable based on the father’s reported income.

[73] There is nothing in the evidence before me to support a finding that something other than support in accordance with the Child Support Guidelines, O. Reg. 391/97 is to be paid. Based on that income and the Table for Ontario: One Child, the monthly child support payable is $525.00 ($517 + (0.98% x $820)).

[74] I therefore order, on a without prejudice basis, that the father pay child support in the amount of $525.00 per month retroactive to May 7, 2015.

ISSUE NO. 3: Spousal Support

[75] In the Divorcemate calculation included as exhibit ‘C’ to the July 29, 2015 affidavit of the mother figures are provided for spousal support payable based on a ‘with child’ formula. Those figures are $958 (low), $1,100 (mid), and $1,242 (high). The figures are based on a length of marriage of 3.6 years and a recipient who is 34 years old. The mother was born in 1983 and is therefore 32 years old. I do not have any evidence before me as to the impact of that two-year difference on the spousal support payable.

[76] On a without prejudice basis, I order that the father pay spousal support in the amount of $1,100.00 per month retroactive to June 23, 2015.

Summary

[77] In all the circumstances of this case, I make the following temporary order, without prejudice to either party to bring a further motion with respect to interim custody, access, child support, and spousal support:

1. The child’s primary place of residence is with Noor Hasan A. Abdulhadi.
2. Ali Ahmad is to have parenting time with the child Mehdi Ahmad (born August 1, 2014): a) Every Tuesday from 4:30 to 7:30 p.m.; b) Every Wednesday from 4:30 to 7:30 or, if the father is available to personally care for the child, from 9:00 a.m. to 7:30 p.m.; c) Every Thursday from 4:30 to 7:30 p.m.; and d) On weekends as follows: i) Commencing on the weekend of January 2 and 3, 2016 and on alternating weekends thereafter - on Saturday from 9:00 a.m. to Sunday at 4:00 p.m.; and ii) Commencing on the weekend of January 9 and 10, 2016 and on alternating weekends thereafter - on Saturday from 9:00 a.m. to Saturday at 4:00 p.m.
3. Ali Ahmad shall pay child support, based on his 2014 income of $57,820.00 and in accordance with the Child Support Guidelines, in the amount of $525.00 per month.
4. The payment of child support is retroactive to May 7, 2015 with the first month’s payment pro-rated to take into consideration the payment period of May 8 to 31, 2015.
5. Ali Ahmad shall pay spousal support in the amount of $1,100 per month.
6. The payment of spousal support is retroactive to June 23, 2015 with the first month’s payment pro-rated to take into consideration the payment period of June 23 to 30, 2015.

Costs

[78] The father’s motion for an order for interim custody of the child was unsuccessful. Although the mother was not granted interim custody, the child continues to have his primary residence with the mother. The endorsements of Justices Robertson and Blishen are continued in that regard.

[79] The mother is successful in securing a without prejudice order for both child support and spousal support, both retroactively.

[80] Based on the mother’s success on the return of the matter before me and the father’s conduct to date, the latter in particular with respect to financial matters (proceeds of sale of the matrimonial home, child support, and spousal support), I find that the mother is entitled to her costs of the father’s motion and of her cross-motion. By awarding costs in favour of the mother I am in no way condoning her unilateral decision to leave the matrimonial home with the child.

[81] In all of the circumstances, there shall be no costs of the appearance before Master Roger (as he then was). Master Roger ordered that the costs of that appearance be reserved to the judge hearing the father’s motion.

[82] With respect to the mother’s costs of the motion and cross-motion:

1. The submissions on behalf of the mother with respect to costs shall be delivered no later than Friday, January 8, 2016 at 5:00 p.m.
2. The submissions of the father with respect to costs shall be delivered no later than Friday, January 15, 2016 at 5:00 p.m.
3. The parties’ respective submissions shall be limited to a maximum of three pages, exclusive of the bill of costs;
4. The parties’ respective submissions shall comply with Rule 4 of the Rules of Civil Procedure; and
5. Hard copies of any case law or other authorities relied on shall be provided together with the submissions.

Justice S. Corthorn

Date: December 24, 2015

Court File No.: FC-15-1115

Date: 2015-12-24

Ontario

Superior Court of Justice

Re: Noor Hasan A. Abdulhadi

Applicant

And

Ali Ahmad

Respondent

Before: Madam Justice S. Corthorn

Counsel: Odette Rwigamba, Counsel, for the Applicant Thomas W. Curran, Counsel, for the Respondent

Endorsement

Justice S. Corthorn

Released: December 24, 2015